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Talking Transportation with Jenifer Ross-Amato Denver RTD Deputy General Counsel

This week’s ATLP Highlights blog features an interview with Jenifer Ross-Amato, Deputy General Counsel – until this past June, Interim General Counsel – of Denver’s Regional Transportation District (RTD).  RTD is a political subdivision of the State of Colorado and the Denver metropolitan area’s transit agency with over 170 bus routes and 11 light and commuter rail lines.

My discussion with Jenifer is a sequel of sorts to my May 22 conversation with SEPTA Deputy General Counsel, Jay Fox.  In contrast to SEPTA’s legacy rail operations, RTD light and commuter rail services are a “New Start” named after the Federal Transit Agency’s program for funding new commuter services.  

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LAW360 Names ATLP Board Members Rising Stars for 2020



Congratulations to two of our ATLP Board members who have been listed on Law360's Rising Stars for 2020 Top Attorneys Under 40.

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Forwarding and Logistics Startups Must Be Mindful of U.S. Licensing, Registration and Compliance Requirements

Recent reports indicate that a number of new entities are organizing and raising capital to respond to opportunities arising from the COVID-19 crisis and related developments. Recently, Beacon, a United Kingdom-based forwarding startup that "aims to act as the booking agents between importers and exporters while facilitating trade logistics and finance" according to its website, has signed on a $15 million investment from Jeff Bezos. Beacon investors already include top executives from Uber, Google and other companies in the surrounding supply chain, transport and logistics space.

There are also a significant number of other new and well-capitalized players in the forwarding and third-party logistics (3PL) business, offering innovative services to match suppliers and buyers, and to move goods in global commerce more quickly and easily, with more pricing options for traders at all levels. Many of these services offer to move almost anything, from personal items to trade goods, from one place to another globally at very competitive prices, with simple transaction structures and simple on-line booking.

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ATLP Highlights Blog—Maritime

The Clause Paramount and Himalaya Clause in Two Through Bills of Lading Extend COGSA Limitations to the Ocean Carrier and Inland Rail Carriers

            Recently, in Siemens Energy, Inc. and Progressive Rail, Inc. v. CSX Transp., Inc., __ F. Supp. 3d __ (E.D. Ky. 2020), a district court held that the through bills of lading for an international shipment extended the limitation of liability provisions of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 30701, Note § 1(a), to the rail carrier for the inland leg of the transportation of cargo.  The district court further held that the Covenant Not to Sue contained in the through bills of lading prohibited the Shipper from asserting a claim for cargo damage against the inland rail carrier.

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Railroads Update

This blog discusses three recent decisions issued by the Surface Transportation Board (STB or Board) in two demurrage proceedings that arose, in part, as a result of testimony and comments submitted in Ex Parte 754, Oversight Hearing on Demurrage & Accessorial Charges.

The Board Issues a Demurrage Policy Statement

            On April 30, 2020, the Board issued a Statement of Board Policy explaining the principles the Board will consider in evaluating the reasonableness of demurrage and accessorial rules and charges.  Policy Statement on Demurrage and Accessorial Rules and Charges, EP 757 (STB served April 30, 2020).  This policy statement was finalized following a notice of proposed statement of Board policy issued in October 2019 and a public comment period.  The Board noted that it is not making any “binding determinations” with the policy statement, and that the Board will continue to adjudicate specific cases based on all facts and arguments presented.  Id., slip op. at 3.



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Passenger Rail Update

Introduction
 
            The passenger rail sphere has seen a number of developments in the spring of 2020 on the regulatory and funding fronts, including:

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New Hours of Service Rule Will Allow Drivers More Flexibility

The Federal Motor Carrier Safety Administration (FMCSA) has issued its long-awaited final rule on changes to hours of service requirements in a move intended to increase flexibility for truck drivers and motor carriers. The final rule is based on a proposed rulemaking that was announced August 14, 2019. The final rule was published on June 1, 2020 and will go into effect on September 29, 2020. The final rule includes four key revisions to the existing hours of service requirements:

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Return to Work – Return to Litigation?

Robert is a partner with AALRR and a member of the firm’s Return to Work Task Force. He is a co-author of the AALRR Return to Work Tool Kit

Many of the waking hours of executives in the modes and their counsel have been filled with navigating the emergency rules and regulations that have been issued at the federal and state level arising from the Covid-19 Pandemic.

The new legal framework for remote work, economic benefits and relief, social distancing, testing and matters of testing and personal protective hygiene, returning to work poses challenges.  However, returning to normalcy brings its own irony for employers - a return to issues of traditional labor law, albeit in new ways. That is our topic here.



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Talking Transportation with Jay Fox - SEPTA Deputy General Counsel

This week’s ATLP Highlights Blog features an interview that I recently conducted with Jay Fox, Deputy General Counsel for the Southeastern Pennsylvania Transportation Authority (“SEPTA”).

SEPTA serves the Philadelphia metropolitan area operating: bus, rapid transit, commuter rail, light rail, and electric trolleybus service.  The transit agency employs over 9,000 people and logs nearly 1.5 trillion passenger miles per year across all modes.

Jay began his career in private practice as a litigator and then as general counsel to an export management firm before joining the Federal Aviation Administration (“FAA”) only a month after the September 11 terrorist attacks.  He then went on to the Federal Transit Administration and Amtrak prior to joining SEPTA. Jay is a graduate of Rutgers Law School.

Jay and I spoke via zoom as both Philadelphia, where Jay lives, and metro Washington D.C., my home, are currently under “stay-at-home” orders in response to the Covid-19 Pandemic.





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Department of Energy Study Finds Bakken Crude No More Volatile than Crude from Other Regions

On April 20, the U.S. Department of Energy (DOE) issued a report to Congress entitled “Crude Oil Characterization Research Study.”  The impetus for this study dates back to the 2013 Lac Megantic tragedy and other derailments of trains carrying Bakken crude oil.  In 2015, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration adopted the Tank Car Standards and Operational Controls for High-Hazard Flammable Trains Final Rule.  That rule was grounded in the assumption that crude oil produced in the Bakken region is more flammable than crude produced in other areas, and it imposed additional requirements and restrictions on trains carrying Bakken crude.  Section 7309 of the Fixing America’s Surface Transportation Act, enacted later in 2015, provided for a study to determine the accuracy of this controversial assumption. 

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PHMSA Issues Determination and Notice Regarding Vapor Pressure of Crude Oil Transported by Rail

On May 11, PHMSA issued (1) an administrative determination that federal law preempts Washington State’s vapor pressure limit for crude oil in rail tank cars and (2) a notice withdrawing the agency’s Advance Notice of Proposed Rulemaking (ANPRM) regarding vapor pressure for crude oil transported by rail.

PHMSA provided three arguments in support of its preemption determination.  First, it concluded that Washington State’s vapor pressure requirement effectively creates a new class of crude oil subject to special requirements that are not substantively the same as the federal Hazardous Materials Regulations (HMR).  Similarly, PHMSA found that the State’s vapor pressure law imposes requirements on the handling of a hazardous material that are not substantively the same as the requirements of the HMR.  Finally, PHMSA determined that the Washington State vapor pressure requirement is an obstacle to accomplishing and carrying out the federal Hazardous Materials Transportation Act.  Under PHMSA’s regulations, Washington State has until May 31, 2020, to file a petition for reconsideration.

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DOT OIG Issues Recommendations to PHMSA on Siting Evaluations for LNG Facilities and Monitoring State Pipeline Safety Programs

On April 28, the DOT’s Office of Inspector General (OIG) published the results of its audit which assessed various PHMSA activities related to liquefied natural gas (LNG) facilities.  Specifically, the audit examined PHMSA’s (1) inspection of existing interstate LNG facilities, (2) review of applications for proposed new interstate LNG facilities, and (3) evaluation of state gas programs’ oversight of LNG facilities.

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Texas Railroad Commission Issues Notice to Pipeline Operators

On April 15, the Texas Railroad Commission (RRC) issued a notice to pipeline operators that, when applying for a new or amended T-4 permit to operate a pipeline in Texas, they are required to submit digital mapping shapefiles, including abandoned pipelines, through the RRC Online System using the Pipeline Online Permitting System.  The notice reiterates that federal pipeline safety regulations define an abandoned pipeline as one that has been “permanently removed from service.”  The notice explains that this information is required as part of “other information requested by the Commission” under 16 Texas Administrative Code § 3.70.

Eleventh Circuit Rejects Appeal of Woman Injured Because Her Seatbelt Was not Fastened

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a jury’s decision that a passenger was 99 percent liable for her injuries arising from severe turbulence because she was not wearing her seatbelt despite instructions to do so.[1]

Plaintiff Fanny Quevedo, an experienced traveler, was travelling from Miami to Milan with a layover in Madrid.  The segment from Madrid to Milan, an Iberia Airlines flight, was intended to land at Milan-Malpensa airport.  Prior to takeoff, the Iberia flight crew provided the passengers with the regular safety instructions, including that seatbelts must remain fastened at all times when the seatbelt light is on, and that Iberia recommended that seatbelts remained fastened “at all times.”  The fastened seatbelt recommendation is reflected in Iberia’s policies: when the seatbelt light is on passengers are reminded to keep their seatbelts fastened every fifteen minutes, and if a flight crew member cannot see a passenger’s seatbelt when securing the cabin, they are required to move clothing and wake up sleeping passengers to ensure that seatbelts are fastened.

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Data Collection from Passengers for Virus Contact Tracing Purposes

Since at least the time of the SARS epidemic in 2005, when it issued an ultimately abandoned notice of proposed rulemaking, the Centers for Disease Control (“CDC”) has been interested in gathering information from airlines on passengers arriving in the United States. CDC wants such information to engage in contact tracing, a term that perhaps few of us ever heard of before COVID-19, but now has entered the popular lexicon. In essence, contact tracing refers to identifying the persons with whom an infected or contagious person may have been in contact for the purpose of requiring the contacted persons to quarantine and thereby avoid further infection of others. Such tracing will need to be an essential part of efforts to reopen the US economy. The problem for airlines is that for about half of their passengers, they don’t currently collect the contact data that CDC needs.

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FMCSA Expands and Extends Hours of Service and Other Exemptions in Response to COVID-19

The Federal Motor Carrier Safety Administration (FMCSA) has expanded and extended its Emergency Declaration through May 15, 2020, or until the COVID-19 national emergency declaration from the President of the United States is revoked.  The Emergency Declaration exempts motor carriers and drivers from federal regulations located at 49 CFR Parts 390-399 (which includes the hours of service requirements) when providing “direct assistance” in support of relief efforts related to COVID-19.  The Emergency Declaration was initially issued on Friday March 13, 2020 and expanded on March 18, 2020.  It was set to expire on April 15, 2020.  Before it expired, on April 8, 2020, the Emergency Declaration was extended until May 15, 2020, and was revised.  Under the updated Emergency Declaration, “direct assistance” now includes the following:

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Federal Regulatory Implications of Storing Crude Oil in Rail Tank Cars

The United States is awash in oil.  The Coronavirus Pandemic has collapsed global demand and at the same time recent increased oil production by Saudi Arabia and Russia has caused oil supply to surge.  Facing a potential need for storage, Bloomberg is reporting that oil companies are considering rail cars to store excess crude oil.  Railroads and shippers need to understand the regulatory implications of doing so.

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The Board and the FRA Address COVID-19 Impacts

Both the Surface Transportation Board (STB or Board) and the Federal Railroad Administration (FRA) have taken certain steps to address impacts of the COVID-19 pandemic.  The Board announced that, starting on March 17, 2020, all filings and other submissions should be made electronically.  Until further notice, the Board will not be accepting paper filings or providing paper copies of any decisions or other materials.  STB Homepage, https://prod.stb.gov/.  The STB has also granted certain deadline extensions in proceedings where requested due to COVID-19 impacts.  E.g., Ass’n of Am. R.Rs.—Petition for Declaratory Order, FD 36369 (STB served March 19, 2020); Petition by the Nat’l R.R. Passenger Corp. (Amtrak) for Proceeding under 49 U.S.C. § 24903(c)(2), FD 36332 (STB served March 17, 2020). 

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Covid 19 Protocols for Those Who Must Work in the Modes of Transportation (Updated 4/6/2020)

NOTE ON THIS UPDATE:

This update contains additional information related to site disinfection and mask and respirator usage and employee safety training and meetings. These are identified as Special Notes and set out in italics.  Contact Robert Fried with interim questions and to provide updates, insights and best practices that will amplify future updates.

Overview

While the serious impact of the COVID-19 pandemic is broadly understood, the role of industry leaders and their counsel is to identify the functional planning measures inherent in their industries as action steps. The protocols necessarily go beyond remote work, social distancing, testing and matters of personal protective hygiene.  This article approaches this subject in terms of the collected views of experts in the basic modes – ships, planes, trucking and trains, and transit hubs, incorporating all of them from the viewpoint of micro-protocols. 





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Letter from the President

I hope this letter finds you healthy and dealing the best you can with the Coronavirus (COVID-19) pandemic. The Association of Transportation Law Professionals (ATLP) prides itself on the value that its programs bring to you as well as the opportunity for you to network and continue to develop relationships with your colleagues. Unfortunately, as a result of the pandemic, we have been forced to cancel the 2020 Annual Meeting set for Vancouver, BC in June. Given the current travel restrictions between the US and Canada, as well as the 14-day quarantine for US travelers who enter Canada and the numerous “shelter in place” orders enacted by a majority of states, the meeting is not feasible. Needless to say, this is a great disappointment for all, but rest assured that we are looking at other opportunities to bring you updated information relevant to your business, even if it must be done virtually.

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